A Glimmer of Hope? The FCC Helps Some Companies in Its Interpretation of 2012 Rule Changes (FCC TCPA Order Report Part 5 of 11)

So far, our series on the July 10, 2015 FCC Order has painted a pretty bleak picture for businesses hoping to stay in compliance and limit litigation risks. But there was some good news in the FCC Order for certain businesses. Among the many petitions considered by the FCC were three focused on the rule change related to prior express written consent enacted by the FCC in 2012. The FCC’s response to those petitions was generally positive, although the relief actually granted was limited mostly to the petitioning organizations and their members. Still, in an order that is generally considered harmful to businesses, this has to be considered a small victory.

The first two petitioners sought relief related to the prior-express-written-consent rule that became effective October 16, 2013. That rule “requires prior express consent for telemarketing calls; to get such consent, telemarketers must tell consumers the telemarketing will be done with autodialer equipment and that consent is not a condition of purchase.” The petitions from the Direct Marketing Association (DMA) and the Coalition of Mobile Engagement Providers (the Coalition) both sought to clarify that the new requirements did not nullify written express consents that existed before the rule went into effect—even if those consents were provided under circumstances that do not strictly adhere to the new rule.

The FCC found that “the rule applies per call and that telemarketers should not rely on a consumer’s written consent obtained before the current rule took effect if that consent does not satisfy the current rule.” But the FCC recognized that this may not have been clear from its prior rulings and therefore granted DMA and the Coalition, as well as all of their members as of July 10, 2015, a retroactive waiver from October 16, 2013 through July 10, 2015, and created a safe harbor period of 89 days following issuance of the order for the petitioners to rely on the old prior express written consents while bringing themselves into compliance with the new rule. The upshot is that any business that was a member of DMA and the Coalition as of July 10 can continue to rely on old prior express written consents until October 7, 2015—although those businesses should use that time to get new consents from customers that comply with the new rules. Unfortunately, this ruling may not apply to companies that are not part of DMA or the Coalition.

The third petition, brought by the Retail Industry Leaders Association (RILA), asked the FCC to clarify whether the prior-express-written-consent rule would be violated if a retailer sent a one-time text message to a customer immediately after a request from that customer. The FCC found that “a one-time text message sent immediately after a consumer’s request for the text does not violate the TCPA and our rules.” Specifically, the FCC found that “an on-demand text sent by retailers under the facts described by RILA is not telemarketing, but instead fulfillment of the consumer’s request to receive the text.”

But the FCC was careful to limit its ruling to the unique facts and circumstances presented by the RILA petition: “We emphasize that this ruling applies only when the on-demand text message has been expressly requested by the consumer in the first instance.” Thus, while retailers can take comfort in knowing that in-store texting campaigns (for example, to provide customers with coupons) have a certain degree of protection, it is unclear to what degree parallels can be drawn to other scenarios.

Blaine C. Kimrey is a Shareholder at Vedder Price, Chair of the Media & Entertainment Litigation practice group, and a member of the Privacy, CyberSecurity, & Media practice group. A former journalist at two daily newspapers (the Austin American-Statesman and the Arkansas Democrat-Gazette), Mr. Kimrey is a trial lawyer who has dedicated more than 20 years to working for and defending media entities. Mr. Kimrey’s practice, however, extends well beyond media defense, focusing on a broad range of direct and class action litigation involving topics as diverse as privacy, consumer deception, intellectual property, entertainment, insurance, banking, real estate, civil rights, telecommunications, and mass catastrophes and torts. Among other accolades, Mr. Kimrey is Chambers USA Band 2 rated for Media & Entertainment Litigation in the state of Illinois, is listed in Best Lawyers in America for Intellectual Property Litigation, and is AV-rated by Martindale-Hubbell.